Dallas Bar Association
HEADNOTES January 2015 Volume 40 Number 1
Brad Weber to be Inaugurated as DBA’s 106th President By Jared M. Slade
Focus Intellectual Property Law
Carlyle H. Chapman to Receive 2015 MLK Justice Award
tion and labor and employment matters. At Locke Lord, Carlyle was committed to the The Dallas Bar Association will present the achievement of young lawyers, particularly young Martin Luther King, Jr. Justice Award to Carlyle African-American lawyers. As a young lawyer who H. Chapman, Jr. on January 19, 2015. The award is benefited from Carlyle’s presence, mentoring, and presented annually to local leaders whose lives and example, I saw firsthand the impact he made. Since 2006, Locke Lord has promoted five practice exemplify the principles embodAfrican-American lawyers (in the Dalied by Dr. King’s leadership. Carlyle’s reclas office alone) to partner, four of whom ognition comes after over 40 years (and started as summer law clerks. The firm has counting) of his leadership in the Dallas recruited, retained and promoted countBar Association and the greater comless others who have all become successmunity, where he has practiced with the ful members of the legal community. utmost commitment to the letter and African-American lawyers from spirit of the law and his clients’ rights. Locke Lord have fond memories of the Carlyle knew the value of a solid “Get-to-Gathers” that Carlyle, and his education as his parents, Carlyle H. wife, Gloria, hosted in their home for Chapman, Sr. and Gloria Dix Chapthe purpose of building community and man, were respected educators in Baton Rouge, Louisiana. His mother held a Carlyle H. Chapman, Jr. navigating “life in the Big Firm.” Carlyle Masters in both Education and English and was the made a point to gain firsthand knowledge of work first African-American principal in a major High product and provide meaningful comments and critiSchool; his father was a professor of agricultural sci- cism when needed in evaluative processes. He did ence at Southern University and ultimately served not hesitate to ensure and instill the level of excellence and professionalism commensurate with his as registrar. Carlyle initially enrolled as a freshman at South- leadership by example. When asked about his reaction to receiving the ern University in Baton Rouge, where he was elected President of his Class. After making a crowd-moving MLK Award, Carlyle shared his “surprise” and honor. speech to the student body regarding the concept While a surprise to him, it is no surprise to the comof “separate but unequal,” he transferred to Indiana munity. A trailblazer of advocacy, he has been a University, which had existed as an integrated uni- member of The American Board of Trial Advocates versity for a number of years, rather than Louisiana since 1999, where he has served as the first AfricanState University, which was experiencing its initial American President of both the Dallas Chapter and year of integrated education. It was in Indiana that he Texas Region; the first African-American Vice Presimet his wife and life partner, Gloria Ogelsby Chap- dent of the National ABOTA Foundation; and will serve as the first African-American President of the man. Carlyle is a 1973 graduate of The University of ABOTA Foundation in 2016. Carlyle has also been a trailblazer in the comMichigan Law School, and immediately thereafter began practicing law in Dallas. He became board munity. His board service spans the arts, education, certified in personal injury trial law by 1980, but his church and media. He served on the Police Advitrial experience includes a number of areas, including sory Board, created in the early 1980s, after a Hislabor and employment, business commercial litiga- panic child was shot by police. The citizens of Dallas insisted on a police review board to review the tion, civil rights and workers’ compensation. He initially worked with Mullinax Wells Mauzy actions of the Dallas Police Department and make & Baab, P.C., where he later became a named part- recommendations. Once again Carlyle proved to be ner. In 1980, along with Foster Reese, he became a a great resource to the community. Carlyle’s pride and legacy continues through the founding partner of the first minority-owned law firm in Dallas, Chapman & Reese, P.C. The Honor- success of his children—his son, Carlyle H. Chapable Fred Tinsley, Judge of the 195th District Court man III, a graduate of The St. Mark’s School of Texas was also a founding partner in this firm (at that time and The University of Michigan, and his daughter, Chapman, Tinsley & Reese) until his ascension to Erin D. Chapman, Ph. D., who is a graduate of The the bench. Foster Reese said Carlyle “was an out- Hockaday School, Stanford University and Yale standing partner for 15 years, an ultimate professional University, where she obtained her doctorate. Dr. and, above all, a great trial lawyer.” Chapman & Chapman, a published author working on her second Reese was among the first 10 law firms to participate book, is now a tenured professor at George Washingin the Minority Counsel Demonstration Program ton University, teaching African-American History established by the American Bar Association. The and Women’s Studies. “People respect Carlyle because he is smart, hardfirm was chosen because of its ability to handle comworking, and above all professional,” said DBA Presiplex civil matters at a high and sophisticated level. In 1995, Locke Purnell Rain Harrell LLP (now dent Brad Weber. “He is the type of person who leads Locke Lord LLP) approached Carlyle about joining by example.” Carlyle’s exemplary leadership is demonstrated by the firm as a Senior Shareholder. Carlyle had many connections with the firm both personal and profes- the individuals that he has mentored, including lawsional. He accepted based on his knowledge of not yers of all genders and races, and the impact he has only the quality of their work, but also the ethics and made on the bar and greater community. HN civility practiced by the firm. He practiced there until his recent retirement. Carlyle led teams of lawyers A. Shonn Brown is a partner at Gruber Hurst Johansen Hail Shank and can be servicing clients in both complex commercial litiga- reached at sbrown@ghjhlaw.com. By A. Shonn Brown
Bradley C. Weber will be inaugurated as the 106th President of the Dallas Bar Association on January 17, 2015. For Brad, Co-Leader of Locke Lord LLP’s Antitrust Practice Group, the position will be the culmination of years of dedicated service to the Dallas Bar Association and legal community. But to others, it seemed preordained. “With Brad, it was never a question of ‘if’ he’d be Dallas Bar President, but ‘when,’” Frank Stevenson, II, also of Locke Lord and a former DBA President himself, noted. “He has been the ‘go-to’ person to whom DBA presidents have instinctively turned to handle challenging projects or crucial initiatives. He has performed every task the Dallas Bar assigned, and performed each splendidly. We’ll be proud to have Brad as our president.” Immediate past DBA President Scott McElhaney, a litigator at Jackson Walker LLP, agrees, “Brad has a broad depth of experience, and I am confident he will make a great president.” After growing up in Iowa and studying engineering science at Iowa State University, Brad decided to pursue his Juris Doctorate and enrolled at the University of Michigan Law School. Upon graduation, he joined Rain Harrell Emery Young & Doke, which quickly became, through merger, Locke Purnell Rain Harrell. He credits former Locke Lord attorney and Dallas Court of Appeals Justice Jim Moseley and Lock Lord attorney C. Paul Rogers, III, former dean and current professor of law at SMU’s Dedman School of Law, with roping him into antitrust cases, which has since blossomed into a full-service antitrust practice. “Brad is a superb attorney, and has the respect of his colleagues here at Locke Lord, as well as of attorneys in the antitrust legal community and the clients he serves,” said Mr. Stevenson. Locke Lord Executive Committee member and litigator Thomas G. Yoxall added, “Brad’s a brilliant guy and tremendous antitrust lawyer with an interesting and unique antitrust practice that includes litigation and counseling aspects.” While Brad focuses his antitrust practice on litigation, government investigations and antitrust compliance, he too provides transactional counsel-
Bradley C. Weber
ing about the antitrust implications of proposed acquisitions and other business activities. “Working with Brad is an absolute pleasure,” effuses one of Brad’s clients, Dan Yanagihara, General Counsel at Pacific Coast Companies, Inc., who communicates with Brad almost daily in connection with a case pending in Philadelphia. “Brad’s vast expertise in antitrust matters and his ability to draw on prior experiences provides my company with comfort that we are in excellent hands. My only complaint is Brad dodges all my golf invitations using some Dallas Bar event as his last excuse!” In addition to praising Locke Lord’s platform for his antitrust practice, Brad also credits Locke’s bar-service culture as being integral to his involvement. He quickly ticked off seven former DBA presidents with whom he has practiced during his tenure at Locke Lord and credits them with encouraging his involvement in various bar and young lawyer associations. Mr. Stevenson praised Brad’s commitment to get involved early, “He has been deeply engaged in bar service from the very start of his legal career. All of us at Locke Lord are proud to have Brad continue this firm’s tradition of providing Dallas Bar presidents.” Brad apparently took the message to heart. He served as President of the Dallas Association of Young Lawyers in 1998, was Co-Chair of the American Bar Association, Section of Litigation’s Antitrust Litigation Committee from 2008 to 2011, and serves on the Council of the continued on page 10
Inside 6 Meet Your Sister Bar Presidents 11 Anticipating §101 Rejections Post-Alice 15 Trademark Owners vs. Domain Name Holders 17 Lululemon: An Apple in Fashion
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2 He a d n o t e s l D a l l a s B a r A s s o ciation
January 2015
Calendar January Events FRIDAY CLINICS
JANUARY 9-NORTH DALLAS** Noon
“Now That You Are In Arbitration: Top 10 Tips,” Dawn Estes. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@ dallasbar.org.
JANUARY 16-BELO Noon
“Prosecuting and Defending Credit Card Cases,” Hon. Sally Montgomery. (MCLE 1.00)* RSVP to kzack@ dallasbar.org.
THURSDAY, JANUARY 1
front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@ dallasbar.org.
DBA Offices Closed in Observance of New Year’s Holiday
FRIDAY, JANUARY 2 No DBA Events Scheduled
MONDAY, JANUARY 5 Noon
Tax Law Section “ESOP Planning Opportunities,” Lori Oliphant. (MCLE 1.00)*
TUESDAY, JANUARY 6 Noon
Corporate Counsel Section “Preparing for Your Annual Meeting: Developments in Compliance and Corporate Governance,” David Kern and Jim O’Bannon. (MCLE 1.00)*
Morris Harrell Professionalism Committee
3:30
Judicial Investitures – Family & Juvenile Courts Hon. Kim Cooks and Hon. Andrea Martin
MONDAY, JANUARY 12 Noon
Alternative Dispute Resolution Section Topic Not Yet Available
Business Litigation Section “2 Justice Jeffs and 1 Ordinary Joe: Supreme Court of Texas Update With a Look Back Over the Biggest 2014 Business Cases,” Justice Jeff Brown, Justice Jeff Boyd and Joe Cox. (MCLE 1.00)*
Noon
Employee Benefits & Executive Compensation Section “Annual Round-Up on Notable 2014 Employee Benefits Related Litigation,” Jim Raborn. (MCLE 1.00)*
Solo & Small Firm Section Topic Not Yet Available
Noon
Morris Harrell Professionalism Committee “Lawyer Creeds: History and Assessment,” Hon. Sidney Fizwater, George Chapman, Prof. Fred Moss and Greg Huffman, moderator. (Ethics 1.00)*
MONDAY, JANUARY 26
MONDAY, JANUARY 19 Noon
Martin Luther King, Jr. Justice Award Luncheon. Recipient: Carlyle H. Chapman, Jr. RSVP to bavina@dallasbar.org.
TUESDAY, JANUARY 20 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
International Law Section “Using Law and Lawyers to Confront Human Rights Abuses in Africa,” Leah Boyd. (MCLE 1.00)*
Community Involvement Committee
Entertainment Committee DAYL Elder Law Committee
Intellectual Property Law Section “Lawyers, Ethics, and Money: A Look at Current Ethical Issues Relating to Fee Issues and an Update,” David Hricik. (MCLE 1.00)*
8:00 a.m. Federal Bar Association Civil Practice Seminar Noon
Computer Law Section Topic Not Yet Available
Securities Section “Developments in Public and Private Company Fiduciary Duty Litigation and Related D&O Insurance Issues,” Todd Murray. (Ethics 1.00)*
Golf Tournament Committee
Senior Lawyers Committee
DAYL Solo & Small Firm Committee
TUESDAY, JANUARY 27 Noon
Probate, Trust & Estate Law Section “Ethical Issues in Asset Protection Planning,” Duncan E. Osborne. (Ethics 1.00)*
Courthouse Committee
American Immigration Lawyers Association
Health Law Section “The ‘Ten Commandments’ for Legal Ethics in Healthcare Opinions,” Martin Merritt. (Ethics 1.00)*
Noon
Sports & Entertainment Law Section “Representing Actors for Film, Television and Broadway,” Gregory Jbara. (MCLE 1.00)*
Transition to Law Practice Committee “Orientation to the Transition to Law Practice Program” (MCLE 1.00)*
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
Municipal Justice Bar Association
Noon
Mergers & Acquisitions Section “2014 M&A Year in Review and 2015 Outlook,” David McGuire, Ken Hirsch,Tim Laczkowski, Tom Spivey and Rob Little, moderator. (MCLE 1.00)*
6:00 p.m. Home Project Committee
WEDNESDAY, JANUARY 14 11:30 a.m. House Committee Walk Through
Law Day Committee
Publications Committee
Christian Lawyers Fellowship
St. Thomas More Society
Summer Law Intern Program Committee 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Friday Clinic-North Dallas** “Now That You Are In Arbitration: Top 10 Tips,” Dawn Estes. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in
Friday Clinic at Belo “Prosecuting and Defending Credit Card Cases,” Hon. Sally Montgomery. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
TUESDAY, JANUARY 13
Noon
Noon
Noon
6:00 p.m. Dallas Hispanic Bar Association
7:45 a.m. Dallas Area Real Estate lawyers Discussion Group
FRIDAY, JANUARY 9
FRIDAY, JANUARY 16
Energy Law Section Topic Not Yet Available
THURSDAY, JANUARY 8
6:00 p.m. J.L. Turner Legal Association
Dallas Gay & Lesbian Bar Association
9:00 a.m. Trial Skills Section “Nine Principles of Litigation—and Life,” Michael Tigar. (MCLE 6.00)* Co-sponsored by Business Litigation, Criminal Law and Tort & Insurance Practice Sections.
Noon
Dallas Bar Foundation Board of Directors Meeting
3:30 p.m. DBA Board of Directors Meeting
FRIDAY, JANUARY 23
Peer Assistance Committee
Judiciary Committee
DAYL Animal Welfare Committee
5:30 p.m. Bankruptcy & Commercial Law Section “Recent Developments: 2014 Fifth Circuit and U.S. Supreme Court Bankruptcy Decisions,” Hon. Harlin “Cooter” Hale, Gerrit Pronske and Rakhee Patel. (MCLE 1.00)*
Legal Ethics Committee
CLE Committee
Christian Legal Society
Real Property Law Section “Case Law Update,” David Weatherbie. (MCLE 1.00)*
Noon
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, JANUARY 7
Government Law Section “Internet Legal Research: Free and Easy,” Jessica Haseltine and Jennifer Wondracek. (MCLE 1.00)*
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
Family Law Section Topic Not Yet Available Admissions & Membership Committee
THURSDAY, JANUARY 15 Noon
Appellate Law Section “The Long Road to Death Row and Back to Freedom: the Manuel Velez Story,” Lyndon Bittle and Neil Burger. (Ethics 1.00)*
Media Relations Committee
Minority Participation Committee
You are Invited to the following Judicial Investitures: Tuesday, January 6, 3:30 p.m. at the Belo Mansion Family & Juvenile District Courts Hon. Kim Cooks | Hon. Andrea Martin Wednesday, January 21, 3:30 p.m. at the Belo Mansion Probate Court Hon. Margaret Jones-Johnson | Hon. Ingrid Warren Thursday, January 22, 3:30 p.m. at the Belo Mansion Criminal District Court Hon. Jennifer Bennett | Hon. Brandon Birmingham | Hon. Elizabeth Frizell Hon. Amber Givens | Hon. Tammy Kemp | Hon. Stephanie Mitchell
WENDESDAY, JANUARY 21
Pro Bono Activities Committee
Non-Profit Law Study Group
3:30
Judicial Investitures – Probate Courts Hon. Margaret Jones-Johnson and Hon. Ingrid Warren
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, JANUARY 22 Noon
WEDNESDAY, JANUARY 28
THURSDAY, JANUARY 29 Noon
Criminal Law Section Topic Not Yet Available
Environmental Law Section “Water Quality Trading,” Becca Madsen. (MCLE 1.00)*
Law in the Schools & Community Committee
DBA Community Service Fund Board Meeting
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
3:30
Judicial Investitures – Criminal District Courts Hon. Jennifer Bennett, Hon. Brandon Birmingham, Hon. Elizabeth Frizell, Hon. Amber Givens, Hon. Tammy Kemp and Hon. Stephanie Mitchell
South Dallas Clinic Topic Not Yet Available. (MCLE 1.00)* At UNT Dallas, 7400 University Hills Blvd, Room #138. Park in lot in front of 7400 University Hills Blvd. RSVP to kzack@dallasbar.org. Collaborative Law Section Topic Not Yet Available Trial Skills Section “The New AV Technology at the George Allen Courthouse: Tips and Tricks for How to Use it and Use it Effectively,” Richard Barnett, Hon. Martin Hoffman, Austin Jones and Crystal Jamison. (MCLE 1.00)* Co-sponsored by the Business Litigation and Tort & Insurance Practice Sections.
FRIDAY, JANUARY 30 Noon
DVAP/JLTLA CLE Expunctions and Nondisclosures,” David M. Patin, Jr. (MCLE 1.00)* Free to those who agree to accept a pro bono case through DVAP. Contact hickmont@lanwt.org to register.
DAYL CLE Committee
YOU ARE INVITED! M Ùã®Ä Lçã« Ù K®Ä¦ JÙ. LçÄ « ÊÄ Monday, January 19, Noon at the Belo MLK Jus�ce Award to be presented to Carlyle H. Chapman, Jr. $14.95 per person. RSVPs required. Contact BAvina@dallasbar.org
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
Janu a ry 2 0 1 5 KM_HN_Jan2015_120514.pdf
D al l as Bar A ssoci ati on l Headnotes 3 1
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
January 2015
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
The Next Generation Brad Weber
“Each new generation is reared by its predecessor; the latter must therefore improve in order to improve its successor. The movement is circular.” —Emile Durkheim, 19th Century French Sociologist Each year in November, the incoming DBA President is tasked with writing a President’s Column for the January edition of Headnotes. This year it was my turn. While enjoying Thanksgiving in Iowa with my family, I started giving some serious thought about what I would write in this initial column. For a little inspiration, I decided to re-read the January President’s Columns from some of my predecessors. Scott McElhaney wrote about Martin Luther King, Jr., Sally Crawford’s column focused on DVAP and pro bono legal services, and Barry Sorrels talked about honoring the profession. I eventually got to Frank Stevenson’s column. Frank is my law partner and a person I have counted as a close friend for over two decades. Frank’s column was titled Things Worth Doing, and it unveiled a new program that Frank, Hon. Doug Lang and Christina Melton Crain had developed and were implementing—the Transition to Law Practice Program. The objective of this new program was to match experienced lawyers with new attorneys at the onset of their legal practices. Through a series of presentations and one-on-one mentoring, these new lawyers would be given the necessary essentials to start their careers on the proper path. It was a great idea then and it still is now. Assisting new lawyers and law students has been an important cause of mine, too. Back in 1998, I served as the President of the Dallas Association of Young Lawyers. That year the DAYL started a new project called the Judicial Intern Program. In the initial year of the project, the DAYL placed fifteen law students in judicial intern positions with judges from the Dallas County Courts at Law, District Courts, and Dallas Court of Appeals. Since then, it is estimated that the DAYL Judicial Intern Program has matched over 800 law students with local judges who have participated in the program. Over the years I have met several lawyers who were placed as interns through this program, and without exception they have expressed to me how meaningful and important the judicial intern experience was in their legal careers.
COME TO THE INAUGURAL
As the new DBA President in 2015, my primary focus will be on the continued support of our next generation of lawyers. This new generation faces many difficult challenges, including a tighter job market, rising law school tuition, staggering student loan debts, and fewer mentorship opportunities. And while the Dallas Bar Association is limited in the assistance we can provide for many of these economic challenges, we are not as restricted when it comes to providing mentoring and networking opportunities for new lawyers. One of the ways we can do this is through the Transition to Law Practice Program, which after six years is still going strong. The Program this year will be Chaired by Kate Morris, who herself was one of the first young lawyers enrolled as a “mentee” in the program. Kate and the other leaders of the program have some great ideas for improving both the matching process and the content of the scheduled presentations and events. One new aspect of the Transition to Law Practice Program will involve our excellent DBA Sections. I will be calling on Section Chairs to assist us in locating qualified lawyers within their Sections who will agree to serve as mentors for the new lawyers enrolled in the program. As an example, we plan to match young bankruptcy lawyers with experienced attorneys who are members of the DBA Bankruptcy Section. By enlisting the support of our Sections, we should be able to better match young lawyers with more experienced attorneys who practice in the same field of law. This matching process also has the added benefit of integrating new lawyers into our Sections, which should help to reinvigorate these Sections. The DBA’s increased support for the next generation of lawyers also will include law students. During the past fall, I met with the Deans and other leaders of some of our local and regional law schools, including Jennifer Collins (SMU), Darby Dickerson (Texas Tech), Hon. Royal Ferguson (UNT Dallas) and Al Ellis (UNT Dallas). Those meetings generated new ideas for fostering stronger relationships between the DBA, the law schools, and their students. More details about some of these new programs will be provided in the coming weeks. Many young lawyers and law students desperately need our help. As we work together in 2015, I am counting on this great bar association to once again come to the aid of a group that is in need. By improving our bar association in this way, we in turn can improve the next generation of Dallas lawyers. The HN movement is circular.
OF Bradley C. Weber The Westin Hotel Galleria
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OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (PresidentElect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Leon Carter, John Jansonius and Florentino A. Ramirez HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan George Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Keith Pillers, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas
Saturday, January 17, 2015
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DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karina Sanchez, Monique Scott Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
Janua ry 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Intellectual Property Law
Patenting Inventions in the Genetic Field: It’s Complicated by Ann Fritsche
Before an applicant proves that his invention is “novel” and “non-obvious,” he must face another, more fundamental hurdle on the road to obtaining a patent: showing that his invention is of a patent-eligible subject matter. Dictated by 35 USC § 101, patent-eligible subject matter is “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Over the centuries-long patent regime, such eligible subject matter has included chemical formulas, business methods, and even genetically modified organisms. In fact, despite the recent media uproar over the patenting of human DNA, genetic inventions had been routinely granted for almost thirty-five years when the Supreme Court concluded that, in drafting § 101, Congress had intended for any invention “under the sun that is made by man” to be patent-eligible. Though biomedical research has taken a break from the legal spotlight for several decades, the entire industry has been rocked by recent Supreme Court decisions concerning patent-eligible subject matter under §101, including the high-profile case of Association for Molecular Pathology v. Myriad Genetics, Inc. At issue in Myriad was the ability to patent isolated DNA sequences and related diagnostic methods. The patent owner, Myriad, had used its patents to assess the likelihood that a patient with particular genetic mutations would develop breast cancer. Myriad’s competitors protested its aggressive business model, which prevented them from administering similar diagnostic tests, and questioned whether Myriad’s patents were, in fact, patent-eligible subject matter under §101. Though Myriad prevailed in the Federal Circuit, the Supreme Court dealt a solid blow to Myriad and the biotech industry. The Court concluded that “naturally-occurring” DNA segments were products of nature, and therefore not patent-eligible simply because the segments had been isolated from the rest of the human genome. The Court viewed Myriad’s isolated DNA sequences as mere
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“discoveries” and therefore not patenteligible subject matter under §101. The Court did, however, conclude that creation of a non-naturally-occurring product could result in a patentable invention. It determined that complementary DNA (cDNA)—a genetic product largely identical to genomic DNA, but with its non-coding sequences excised—was sufficiently manipulated to be considered non-naturally-occurring. However, the Court failed to elaborate on its rationale, stating only that a lab technician “unquestionably creates something new when cDNA is made.” The §101 analysis has been further complicated by other recent Supreme Court decisions that have emphasized the ideas of the “inventive concept” and patent-ineligible “fundamental principles”. An inventive concept is “an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” This is a far cry from the
expansive “anything under the sun” inquiry espoused by the Court in 1980. The cumulative effect of these cases has been uncertainty for inventors and researchers across all scientific disciplines, particularly for those in the biomedical field. Following Myriad, the USPTO released a “Guidance” memorandum to aid its examiners in determining whether new applications directed to genetic inventions included patenteligible subject matter. Biomedical and pharmaceutical companies have urged the USPTO to release this Guidance as a draft to seek more public comment before implementation and have been vocal about their distaste of the Supreme Court’s “subjective” §101 analysis. Other critics have lamented the impact of these recent cases on the future of pharmaceutical and biotech industries, since companies are no longer able to reliably evaluate the probability of obtaining patents for their inventions, given the “moving slate” of Supreme Court decisions. These same companies may also be averse to
developing new drug technologies, since these inventions would arguably not be patentable under the USPTO’s new Guidelines. On the other hand, these cases examining the §101 analysis could also be read to symbolize a broadening of the genetictesting market, ostensibly resulting in a boon for both Myriad’s competitors and consumers. Consequently, the implications of this altered §101 analysis on biomedical research may be profound. Companies that had once relied solely on the value of their genetic inventions may have to reevaluate their strategy to even remain viable. As a result, regardless of their practice focus, practitioners serving any client in this field would be wise to closely follow these issues in the coming years, given their enormous impact on the value of biotech and pharmaceutical HN companies. Ann Fritsche is an attorney for the Shiells Law Firm and can be reached at aefritsche@gmail.com.
Richard Orsinger Honored Again
TEXAS SUPER LAWYERS TOP TEN 2 014 , 2 013 , 2 012 , 2 010 & 2 0 0 9
DAN RUGELEY PRICE MEMORIAL AWARD TEXAS BAR FOUNDATION
RICHARD ORSINGER is Board Certified in both Family Law and Civil Appellate Law by the Texas Board of Legal Specialization.
2014
BEST NON-JUDGE SPEAKER AWARD TEXAS CENTER FOR THE JUDICIARY 2013-2014
FRANKLIN JONES AWARD FOR AUTHORING BEST CLE ARTICLE 2013 & 2009
22 Years and One of the Largest Firms in Texas Focused Solely on Family Law
Law Day Luncheon May 1 Mother’s Day Brunch May 10 Bench Bar October 1-3
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6 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2015
Taking the Lead in 2015: Meet Your Sister Bar Presidents by Jessica D. Smith
The Dallas Bar Association is proud to introduce the new presidents of its sister bar associations and looks forward to supporting these leaders as they seek to advance the goals of their organizations and promote the interests of their members throughout the coming year. Monica Lira Bravo, of the Lira Bravo Law Firm, PLLC, will serve as president of Dallas Hispanic Bar Association (DHBA). After graduating from The Hockaday School, Ms. Lira received her BA in French from Southern Methodist University and her law degree from Texas Tech University School of Law. She practices exclusively in the area of immigration law. In addition to her service on the board of the DHBA, Ms. Lira is also the Treasurer for the Southeast Dallas Hispanic Chamber of Commerce and was appointed by Councilman Callahan
Monica Lira Bravo
Jonathan R. Childers
to serve on the City of Dallas Judicial Nominating Commission. In 2011, she was awarded the first ever Estrella Award by the Dallas Hispanic Bar. The Estrella Award is awarded to an up and coming lawyer that has exhibited great leadership skills. In 2014, she was selected as a Rising Star by Super Lawyers Magazine. Jonathan R. Childers will serve as president of the Dallas Association of Young Lawyers (DAYL). Mr. Childers is a partner at Gruber Hurst Johansen Hail
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Bill Richmond
Ebony Rivon
Shank LLP. He practices business trial law, with emphasis on energy litigation, partnership disputes and trade secret litigation. Before joining the firm, he served as a law clerk for the Honorable Sam A. Lindsay, United States District Court for the Northern District of Texas, Dallas Division. Mr. Childers is a fellow of the DAYL Foundation and the Texas Bar Foundation. He serves on the steering committee for the DBA’s Business Litigation Section, and is also a member of the Energy Law and Trial Skills Sections, as well as the ABA’s Litigation Section. He was an Associate of the Patrick E. Higginbotham Inn of Court (2006-2007) and currently is a Barrister in the William “Mac” Taylor Inn of Court (2011-present). Mr. Childers serves on the SMU Alumni Board and chairs its Volunteer Engagement Committee; he also serves on the Board of Management for the T. Boone Pickens Dallas YMCA. He has been designated as Rising Star by Texas Monthly and Law and Politics magazines from 2010 to the present. Bill Richmond will serve as president of the Dallas Asian American Bar Association (DAABA). Mr. Richmond, a graduate of the University of Missouri-Columbia and SMU Dedman School of Law, is an associate at Gruber Hurst Johansen Hail Shank. His practice focuses on representing businesses
in litigation and at trial involving contract disputes, intellectual property, business fraud, large property loss and catastrophic personal injury. In addition to serving as president of DAABA in 2015, Mr. Richmond is also president of the Mizzou Alumni Association, DFW Chapter. He is a member of the National Asian Pacific American Bar Association, the DAYL Leadership Class and has been a high school and law school Trial Advocacy Coach. He has received numerous awards including: Texas Super Lawyers Rising Star in Business Litigation; DAABA’s Outstanding Member of the Year and Co-Chair of the Year Awards an DAYL’s “One to Watch” Award, among others. Ebony Rivon, an experienced family law attorney at Hammerle Finley & Scroggins Law Firm, will serve as president of the J.L. Turner Legal Association (JLTLA). She received her B.A., magna cum laude, from Texas A&M University and is a graduate of Georgetown University Law Center, where she was a Dean’s Grant recipient and on Barristers’ Council, competing on the Alternative Dispute Resolution Team. She interned for the Honorable Carol Ann Dalton of the Superior Court of D.C. Family Court. A member of the Junior League of Dallas, Ms. Rivon is also active in the National Bar Association, where she served as Vice-Chair of the Family Law Section. Statewide, Ms. Rivon is a member of the State Bar of Texas’ Family Law, African American Lawyers and Collaborative Law Sections. Locally, Ms. Rivon serves on the DBA Family Law Section Board Member and DBA E-Mentoring Committee Board Member, is a Fellow of the DAYL and is a member of the Annette HN Stewart Inns of Court. Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallabar.org.
Park Place Dallas Ticket to Drive Raffle ...Winner receives 2015 Mercedes-Benz GLA-Class
Runner-Up Receives:
Fairmont Choice Travel Package (Three-night stay with airfare for 2) Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. Purchase raffle tickets online at
www.dallasbar.org/dvap/raffle.asp or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201). Drawing will be held at the DBA Inaugural Ball on January 17, 2015. The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
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D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Column
January 2015
Ethics
Considerations Before You “Clean Up” A Client’s Facebook Page by John G. Browning
Sooner or later, most attorneys will now have to confront a thorny issue: Just how far can you go in advising your client to “clean up” her Facebook page or other online presence? The uncertainties surrounding the issue have left some attorneys stumbling in an ethical minefield. In one Virginia wrongful death case, the plaintiff’s attorney learned of photos on the surviving husband’s Facebook page that depicted him drinking, surrounded by women and wearing a T-shirt that read “I [heart] hot moms”—hardly the portrait of a grieving widower! The attorney e-mailed his paralegal instructing her to have the client “clean up” his Facebook page. The spoliation resulted in $722,000 in sanctions and a five-year suspension of the plaintiff lawyer’s law license. So just what can a lawyer advise a client regarding social media postings? While there is no Texas authority yet, several ethics committees elsewhere have provided some guidance. The New York County Lawyers Association, in Ethics Opinion 745 (2013), concluded that given the realities of litigation in the Digital Age—in which opposing counsel and others regularly scour social networking platforms for information—“[t]here is no ethical restraint in advising a client to use the highest level of privacy/security settings that is available.” This is simply good common sense, akin to telling the client to keep the shades down at his house or to avoid discussing the case with outsiders. Similarly, that opinion holds that a lawyer can review what a client plans to post on social media and “guide the client appropriately” on social media usage; it even
provides a checklist of tasks that a lawyer can do in counseling her client, including discussing how the posts might be perceived by third parties. More troubling, however, is the fleeting answer the Opinion gives to the question of whether lawyers may instruct clients to “take down” existing content from social media sites. Without explanation or rationale, the Opinion concludes that “provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to (taking down) such material, particularly because the substance of the posting is generally preserved in cyberspace or on the user’s computer.” Other ethics authorities have echoed this position while taking care to explicitly caution against spoliating evidence. The Philadelphia Bar Association Professional Guidance Committee recently concluded that, while a lawyer may advise a client to change the privacy settings on the client’s Facebook page, a lawyer “may not instruct or permit the client to delete/ destroy a relevant photo, link, text, or other content, so that it no longer exists.” Furthermore, that opinion directs the lawyer to take affirmative steps to preserve social networking evidence, including obtaining “a copy of a photograph, link, or other content posted by the client on the client’s Facebook page” about which the lawyer is aware “if the lawyer knows or reasonably believes it has not been produced by the client.” Soon after, the Pennsylvania Bar Association issued its Formal Opinion 2014300, which expressly adopted the Philadelphia Bar ethics opinion’s guidance. It agreed that “a competent lawyer should advise clients about the content that they
post publicly online and how it can affect a case or other legal dispute.” And while the Pennsylvania Bar cautioned that lawyers may not counsel a client to alter, destroy, or conceal any relevant information, there is nothing wrong with changing a client’s profile to “private” or with instructing a client “to delete information that may be damaging from the client’s page, provided the conduct does not constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the information in the event it is discoverable or becomes relevant to the client’s matter.” In North Carolina, a proposed ethics opinion provides that “[i]f removing postings does not constitute spoliation and is not otherwise illegal or a violation of a court order, the lawyer may instruct the client to remove existing postings on social media.” However, that opinion cautions lawyers giving such advice to also preserve the postings “by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology.” And in Florida, a proposed Advisory Opinion on “cleaning up” social media likewise concludes that while a lawyer may advise a client
to adopt stricter privacy settings, she may not advise the client to remove relevant information from a social media page unless a copy of the removed information is maintained and as long as the removal does not violate substantive law (Florida is also considering an alternative approach, mandating against removal period, regardless of steps taken to preserve the social media content). While these opinions indicate that an attorney certainly can advise clients on managing their privacy settings and even the content that they post, the issue of “cleaning up” or removing Facebook postings remains murky. Attorneys are best advised not only to take appropriate measures to preserve potentially relevant social media evidence, but also to remember that the duty of competence now includes an obligation to be aware of the benefits and risks associated with technology. This includes counseling clients not only on the consequences of what they post, but also on the ramifications of HN deleting such posts. John G. Browning is a partner at Lewis Brisbois Bisgaard & Smith LLP. He can be reached at john.browning@lewisbrisbois.com.
“Nine Principles of Litigation—and Life”
by Michael E. Tigar Duke University School of Law Friday, January 23, 2015 • 9:00 a.m.-4:00 p.m., at Belo MCLE 6.00 Sponsored by the Trial Skills, Business Litigation, Criminal Law and TIPS
2015 INAUGURAL OF Bradley C. Weber
CLIENT: Communities Foundation of Texas JOB#: CFOT-14-011 Brand Campaign TRIM: 5"w x 7.75"h LIVE: 5"w x 7.75"h BLEED: n/a COLOR: CMYK
A T T HE W ESTIN G ALLERIA D ALLAS
PUB: Headnotes CONTACT: Jessica D. Smith, Headnotes Editor Communications/Media Director (214) 220-7477 jsmith@dallasbar.org RELEASE: 12/10/14 INSERTION: January
DAN SMITH
Fund Holder, Communities Foundation of Texas
Saturday, January 17, 2015 T U RNIN G LOS S i nto L EG AC Y
The Dallas Bar Association will inaugurate its 106th President, Bradley C. Weber at the inaugural ball on Saturday, January 17.
Dan and Joellyn Smith established the Smith Family Fund at Communities Foundation of Texas as a way to pay their prosperity forward. After Joellyn lost
The black-tie ball will include dinner, dancing to music by the band New Ground and silent and live auctions.
her battle with breast cancer, Dan approached us for guidance on how to honor her memory. Together we created the Joellyn Smith Fund for Breast Cancer Support and matched him with the Bridge Breast
Deep in the heart of giving™
Cocktails 6:30 p.m. | Dinner 7:30 p.m.
Network, which fit Dan’s vision to provide practical support to low-income uninsured women. Joellyn Smith made philanthropy a priority in her
Start your fund today.
life. Thanks to her loving family and support from
Call us at 214-750-4226,
Communities Foundation of Texas, she is still giving
email giving@cftexas.org
back today.
CFOT-14-011 Headnotes_DSmith_02mg.indd 1
or visit www.CFTexas.org/GivingFund.
12/9/14 10:51 AM
Tickets $150; Tables $1,500 | Judiciary $100 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org. Visit www.dallasbar.org for more information!
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D al l as Bar A ssoci ati on l Headnotes 9
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2015
Kim Askew Receives ABA Spirit of Excellence Award Staff Report
Kim J. Askew, a partner at K&L Gates LLP, is the recipient of the 2015 Spirit of Excellence Award from the American Bar Association Commission on Racial and Ethnic Diversity in the Profession. The award, which will be presented at the ABA Midyear Meeting on February 7 in Houston, is given to those who display “commitment to racial and ethnic diversity in the legal profession.” A graduate of Knoxville College, summa cum laude, and Georgetown Law School, she clerked for the Honorable Jerry Buchmeyer before beginning her career with Hughes & Hill, now K&L Gates. She is a longtime leader in the
American Bar Association and has served in its House of Delegates for over a decade. Ms. Askew has held numerous other leadership positions in the ABA, including serving as the chair of the Section on Litigation and the Standing Committee on the Federal Judiciary, where she led the ABA evaluations for the nominations of Justices Sonia Sotomayor and Elena Kagan to the U.S. Kim J. Askew Supreme Court. Ms. Askew was the first African American lawyer to chair the State Bar of Texas Board of Direc-
tors and was awarded a Presidential Citation for her work. A former member of the DBA Board of Directors, she has served as chair or board advisor to the Minority Participation Committee, the Morris Harrell Professionalism Committee, the Judiciary Committee and the Strategic Planning Committee. She is on the Council and Membership Committee of the American Law Institute and is a Master in the Patrick E. Higginbotham American Inn of Court. Ms. Askew specializes in complex
commercial and employment litigation. She represents clients in employment matters involving claims of race, disability, gender and age discrimination, sexual harassment and in litigation involving torts, trade secrets, non-compete and non-solicitation and employment agreements. She is actively involved in the Dallas community through her work on the boards of the Citizens Council of Dallas, the Dallas Museum of Art, Baptist Foundation of Texas, Dallas Theater Center and St. Philips School. Ms. Askew has served on the Georgetown University Board of Regents and is currently a member of the Board of Visitors of the Law Center, which awarded her its Alumnae HN Achievement Award.
Brad Weber to be Inaugurated as DBA’s 106th President continued from page 1
State Bar of Texas Antitrust & Business Litigation Section. He also was involved with the Texas Young Lawyers Association, including serving as a Director from 1995 to 1999. After taking a short break to excise some justified burn out, former DBA President Tim Mountz pulled him into the DBA fold again in 2005 by tasking him with planning and implementing two new programs—an in-town Bench Bar conference and the Law Student Professionalism Program that has become an annual event for the DBA. Since, Brad has continued his highlevel of DBA involvement. He is the past Co-Chair of the Judiciary Committee, the Bench Bar Conference Commit-
tee and the Morris Harrell Professionalism Committee. He also has chaired the DBA’s Board of Directors, its Bylaws Committee, and its Finance Committee (from 2008 through 2013). “Brad is going to be an excellent DBA President because he is an excellent collaborator and consensus-builder with extensive bar association experience. He’s always been focused on benefiting the community,” said Mr. Yoxall. Mr. Stevenson agreed, “We’ll be proud to have Brad as our president. Brad is just a great person—friendly, witty, outgoing and personable.” Brad’s free time away from client demands and bar commitments finds him devoted to his five children, whose ages range from five months to twenty-one years. Fortunately his wife, Katherine
Bandy Weber, herself a practicing litigator with Wilson Elser Mosowitz Edelman & Dicker LLP, is understanding. The newest addition to their family, Brody, in August 2014 has not slowed them down; so far Brody already has joined them on trips to Sacramento, Chicago, Las Vegas, D.C., Des Moines and even Costa Rica! When not jet-setting, Brad attempts to catch as many of his children’s sporting events and activities as he can and take advantage of his enviable Texas Rangers season tickets that he shares with some of his current and former Locke Lord partners. While Brad hopes to maintain the emphasis by the past few DBA Presidents on pro bono service through the Dallas Volunteer Attorney Program and other
wonderful organizations, he also plans to emphasize efforts to get the next generation of DBA leaders involved by establishing more connections with local law schools. In fact, he is working with various local law school deans to create more opportunities for law students to secure mentorship and service opportunities through the DBA. The considerations and concerns of Brad’s eldest son, who is considering a career in the law, underscored for Brad the challenges incoming lawyers face, which he hopes to translate into ways the DBA can offer more support HN and services for new lawyers. Jared M. Slade is a Senior Associate at Alston & Bird LLP and Co-Chair of the DBA Publications Committee. He can be reached at jared.slade@alston.com.
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J anu a ry 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Intellectual Property Law
Anticipating §101 Rejections Post-Alice by Kevin Klughart
The landscape for patent prosecution of computer-related inventions before the United States Patent and Trademark Office (USPTO) has drastically changed since Mayo v. Prometheus recited a twostep test for patent eligibility and Alice v. CLS Bank held abstract ideas are not patentable subject matter. The practical effect of these Supreme Court decisions is that some USPTO art groups have had no patent application allowances since Alice and numerous withdrawal of issued Notice Of Allowances by Examiners. “Abstract Idea” rejections are now routinely cited by Examiners in response to Office Action Responses as new grounds for rejection. Every patent application having any computer related apparatus is now subject to enhanced scrutiny under the Alice and Mayo decisions. While experienced practitioners are accustomed to “kneejerk §103” rejections in Office Actions since the KSR decision, the use of §101 rejections has now become the first and most formidable basis for rejection of any patent claim involving the use of a computer or software.
USPTO Examination “Standards”
While the USPTO has promulgated Preliminary Examination Instructions based on Alice, these are of little practical use for the patent practitioner because they are too vague and leave the definition of “abstract idea” to the Examiner. A more practical examination standard—commonly repeated by Examiners is:
“If the computer in the system you are claiming is broken or absent, would it be possible (even with significant time and much pain or physical effort) to achieve the same result using pen and paper by human mechanical or intellectual effort? If so, the claimed invention is abstract and not patentable.” While this examination standard has not been publically formalized by the USPTO, it is widely used internally to determine when to apply the Alice/Mayo subject matter rejections.
What Fails the Test
Unfortunately, most inventions that strictly operate as software “apps” regardless of hardware platform context will fail this abstraction test. Application of Alice will have a profound impact on corporate patent portfolio valuations and affect a wide variety of business decisions outside of traditional patent prosecution and litigation activities. As an example, it has been reported recently that up to half of IBM’s patent portfolio might fail the Alice standard.
Avoiding Abstraction
To avoid abstraction rejection by the Examiner, the patent application must include concrete, material, physical structures that do not encompass generic computer hardware. This requirement requires more of the physical invention design to be placed into the public domain as part of the patent disclosure. The patent practitioner must therefore mine and understand more of the physical IP associated with the invention by interacting with the inventors to obtain more of the key “secret sauce” of the invention structure. This requires more
detailed invention drawings describing construction as opposed to operation. Concentration on physical construction as compared to functional operation will be necessary to avoid Alice abstraction rejections.
Safe Harbor
The “safe harbor” solution to an anticipated §101 rejection is the incorporation of custom hardware in the system/method embodiments. This requires the use of schematics and other detailed physical design information that is often missing from patent application drawings. Traditionally, flowcharts have been used to provide enablement detail necessary for computer/software applications. This should be augmented by specific hardware details unique to the invention. Be aware that the mere entering of data combined with computer processing without some form of physical transformation is insufficient to overcome an abstraction rejection. However, note that the use of hardware feedback “into the real world” will be sufficient to overcome abstraction because it involves physical activity by the invention. An example
of this might include GPS recalculation within a map routing system.
Synthesis/Integration/ Abstraction
A typical patent application is first formed by synthesis of the elements of the invention, followed by integration of the elements to form the claimed invention, followed by abstraction of these steps to broadly cover the invention scope. When synthesizing the invention it is important to isolate the “computer/software” elements of the invention and focus on detailing the remaining system hardware components and their integration relations to avoid an Examiner abstraction rejection.
Conclusion
Remember, if the Examiner can replace the computer or software with human effort and the remaining invention elements are neither novel nor nonobvious, the claimed invention will fail HN the Alice abstraction test.
Kevin Klughart is a Patent Attorney at Carstens & Cahoon, LLP and adjunct professor at the Texas A&M University School of Law. He can be reached at klughart@cclaw.com.
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12 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2015
This Year Resolve to Take Time to Help a Veteran by Glenwood F. Hill, II
A new year is upon us, and, as we take time for introspection and rededication, supporting the Veterans Legal Clinic is a wonderful opportunity to provide a much needed service to the men and women who sacrifice, and have sacrificed, on our behalf. With the support of Legal Aid of NorthWest Texas (LANWT) and the Dallas Volunteer Attorney Program (DVAP), the Veterans Legal Clinic is a monthly pro bono intake legal clinic held at the Veterans Resource Center the first Friday of every month from 1:30 to 4:00 p.m. Veterans, active duty service members and their families make appointments to attend (by calling 214-857-0388) and,
after certain income eligibility criteria are assessed, meet with volunteer attorneys who review the participant’s chief legal issue. The Veterans Legal Clinic participants usually present with one or more common legal challenges involving family law, probate, wills, landlord/tenant disputes, tax, employment, bankruptcy, and immigration law. Although clinic volunteers are never obligated to provide legal advice, sometimes the participant simply needs summary advice that the clinic volunteer can provide if they feel comfortable doing so. The Veterans Legal Clinic is always staffed with administrative personnel from supporting law firms and LANWT/DVAP who can provide clinic volunteers with subject matter guides and
2014 DBA President Recognized
Scott McElhaney, DBA’s 2014 president, was recognized by the Board of Directors with an oil painting of The Belo Mansion by Texas artist Jerral Derryberry Mr. Derryberry’s work is currently represented and sold in fine art galleries and national exhibitions. More of his work can be seen at www. jerralderryberry.com.
If it’s a matter of
Wrongful Termination, Discrimination or Retaliation, we’re here to help.
checklists for unfamiliar legal subject areas. Clinic volunteers provide an invaluable service by reviewing the Veterans Legal Clinic participant’s legal issue, identifying acute needs for legal representation (like pending hearings), and recommending whether LANWT/DVAP should agree to represent the participant. Veterans’ cases generated from the clinic are placed with pro bono attorneys through DVAP, clinic sponsoring attorneys, and a growing network of concerned attorneys who have agreed to take pro bono cases involving Veterans and active duty servicemembers informally known as the “Veterans Network.” Several factors contribute to a growing need for Veteran and active duty servicemember access to free or reduced-cost legal representation. Troop withdrawals from the military engagement in Afghanistan and other instances of strategic retrenchment return many previously forward-deployed servicemembers to bases here in Texas. More soldiers in Texas result in a greater demand for legal services. Additionally, recent Department of Defense projections anticipate a 17.6 percent reduction-in-force for U.S. Army personnel by 2019. As the largest military service, this force reduction results in increased numbers of unemployed officers and enlisted personnel who at some time might need legal representation. Finally, recent documented instances of inefficiency, delay, and possible misconduct at the country’s Veterans Administration Medical Centers highlights the continuing need many Veterans have for legal counsel or assistance with service-connected benefits claims. The need is great…and so is the opportunity for you to help. There are several ways you can commit to support our Veterans this year: • “Sponsor” (or volunteer at) a Veterans Legal Clinic. Since the first Veterans Legal Clinic was held in December 2009, the monthly clinics have been “sponsored” by large and medium-sized law firms and the
in-house legal staff of numerous civicallyengaged corporations. Solo-practitioners also continue to provide a much needed source of clinic volunteers. Sponsors provide 7–10 attorneys and an administrative support person to run a monthly clinic. If you, your law firm, or your company is interested in sponsoring or volunteering at a Veterans Legal Clinic, please call DVAP at (214) 243-2236 or email popee@lanwt.org. • Take a Veteran-related pro bono case. DVAP regularly distributes email correspondence listing Veterans pro bono cases that need “good homes.” By joining the Veterans Network, you will receive these email notifications and have the opportunity to take a Veteran-related pro bono case. Please email Glenwood Hill (Glenwood.hill@bgllp.com) or Michael Regitz (mike.regitz@nortonrosefulbright.com) for assistance in joining the Veterans Network. • Join Texas Lawyers for Texas Veterans. In 2011, then State Bar of Texas President Terry Tottenham led a major initiative to establish and promote Texas Lawyers for Texas Veterans (TLTV), a program focused on developing and assisting pro bono legal clinics throughout the state for Veterans who otherwise cannot afford or do not have access to the legal services they need. For more information on TLTV, please access the State Bar of Texas’s website: www.texasbar.com/AM/Template.cfm?Section=Texas_ Lawyers_for_Texas_Veterans. The women and men who wear, and have worn, the uniform of our armed forces deserve our sincere thanks, they deserve our respect and they deserve our admiration. But many Veterans and their families NEED the support we, as lawyers and legal personnel, are uniquely qualified to provide. In 2015, won’t YOU give some of your time to support those who have HN given so much? Glenwood F. Hill, II is an Associate at Bracewell & Giuliani LLP. He can be reached at glen.hill@bgllp.com.
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Janua ry 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 13
Intellectual Property Law
Is It a Trade Secret, Confidential Information, or Both? By Megan Carter
Every one of your clients has valuable trade secrets or confidential information to protect, i.e., information that is not generally known to those outside the business and that may afford your client a competitive advantage. Why are trade secrets, confidential information and intellectual property (IP) in general so important to your client and, thus, you? Short answer: Because the value of a business is ever-increasingly tied to the value of its IP. Helping your client identify and protect their trade secrets and confidential information is a simple service you can provide and one that can have significant economic return for your client. Trade secrets and confidential information fall within the domain of intellectual property but are not capable of being registered with any administrative authority (as would be the case with other forms of IP, i.e., patents, copyrights and trademarks). Perhaps because trade secrets and confidential information are not registrable IP, they are often overshadowed by their better known counterparts. This, however, is not indicative of their importance or economic value to a company. Generally speaking, confidential information is information that pertains to a company’s business that is not known to the public. The range of business information that can qualify as confidential information is essentially limitless. Trade secrets, by comparison, are a subset of confidential information that are particularly sensitive or of specific value to a company. Information that could be reverse engineered is not information that should be protected as a trade secret. The crux is not what confidential information could be protected as a trade secret; it is what should be protected as a trade secret from a business standpoint.
Ross Hostetter
Confidential information and trade secrets may include financial, organizational, marketing or technical information—more specifically, a formula, pattern, compilation, program, device, method, technique, process, list of customers or potential customers and even “negative know-how” (e.g., results showing a certain process will not work). This list, however, is by no means exhaustive. Measures to be proactively taken in protecting trade secrets differ from those for confidential information, and are of substantial importance in setting the stage for remedies available in the event confidential assets are threatened. If your client does not know whether they have a trade secret or confidential information—let alone the difference between the two—they may not know how to protect it. Trade secrets require a higher degree of safeguarding than confidential information, but are afforded greater protection and remedies. Therefore, it is critical to know whether information qualifies as a trade secret or
confidential information and how it is subsequently categorized, so that adequate protective measures can be put in place—often through implementation of an identifiable protocol. First, know what constitutes a trade secret. A trade secret (i) must derive actual or potential independent economic value (ii) by not being generally known to and readily ascertainable by other persons who can obtain economic value from its disclosure/use and (iii) is the subject of reasonable efforts to keep the information secret under the circumstances. Second, identify what is valuable to the business and worth protecting as a trade secret. It is not cost-effective or practical to identify all confidential information as a trade secret; identifying all eligible confidential information as a trade secret could make the implementation of the protocol too onerous or dilute the efforts to protect the truly sensitive information. When trying to obtain legal relief it will be necessary to establish what precautions and efforts were
used to keep the information secret. Thus, the company should give due consideration to what it wants to protect as a trade secret. Implementing a trade secret protocol is, at its core, a business matter; however, given the legal implications, it is important that both legal and the business teams work together in drafting the protocol. The following topics merit consideration for inclusion in the protocol: (i) compliance monitoring; (ii) facility security; (iii) specific security for trade secrets; (iv) security of information technology; (v) confidentiality agreements with employees and third parties; (vi) trade secret specific agreements with employees and third parties; (vii) training specific to management and lower-level employees; (viii) new employee interviews; and (ix) exit interviews for departing employees. Through this process you can help your clients establish and maintain a competitive HN edge in the market place. Megan Carter is an associate at Gardere Wynne Sewell LLP. She can be reached at mcarter@gardere.com.
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2015
Start Your Year Off Right—at Belo! With your DBA membership, you can take advantage of all the DBA has to offer—CLEs, mentoring opportunities, pro bono opportunities, public forums, social events and more!
Justice Debra Lehrmann presented a CLE to the Tort & Insurance Practice Section.
DVAP and the J.L. Turner Legal Association co-sponsored a CLE on Juvenile Issues.
Community Involvement Committee members volunteer at the North Texas Food Bank.
The Public Forum Committee hosts various forums throughout the year on hot-topics in the Dallas area.
Come and watch these top-notch high school students perform during the DBA’s Mock Trial Program. Email ktaylor@dallasbar.org to volunteer to be a Mock Trial Judge!
Our annual New Member Reception is a great way to enjoy an evening, while welcoming new attorneys and new DBA members.
ALTERNATIVE LEGAL SERVICE PROVIDERS AND THE FUTURE OF LAW
JOHN SUH, CEO LegalZoom
MILAN MARKOVIC, Professor Texas A&M University School of Law
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ROBERT AMBROGI, Editor Law Sites
JANUARY 22, 2015 PANEL & PRESENTATION • 6PM - Belo Hall • Reception to follow Belo Mansion • 2101 Ross Avenue • Dallas, Texas 75201
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J anu a ry 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Intellectual Property Law
Trademark Owners vs. Domain Name Holders by Katarzyna Brozynski and Sorana G. Ban
Recognizing the value of their intellectual property assets is a very important first step for small business owners. Registration of trademarks increases the value of a business and prevents expensive lawsuits. But what happens when, after securing nationwide rights in a specific class, an owner realizes that his business is derailed to a website that incorporates the trademark in its domain name? This article discusses options available to trademark owners and addresses situations when the domain name registrant might prevail.
Rights of Trademark Owners
A trademark owner has the right to prevent others from using a similar name or logo in relation to specific goods or services. This is meant to prevent confusion among consumers about the source of the goods. Most importantly, a trademark protects the reputation of a company and its goods. In a fight with a domain name registrant, the trademark owner’s traditional avenue to enjoin the use of the domain name infringing or diluting his mark is, of course, litigation. Nevertheless, filing a trademark infringement lawsuit under the Lanham Act 15 U.S.C. §1125(d) is a very time consuming and costly proposition, with final fees in the range of six figures. A preferred option is the domain recovery solution offered by the Uniform Domain Name Dispute Resolution Policy (UDRP). UDRP proceedings provide a much faster resolution of disputes at a fraction of litigation costs. Under
the UDRP procedures, trademark owners who file a valid complaint are entitled to a mandatory expedited administrative proceeding. The authorities reviewing the complaint will analyze it in view of a three-part test: (1) the domain name at issue must be “identical or confusingly similar to a trademark or service mark in which the complainant has rights,” (2) the domain name registrant must not have any rights or legitimate interests in the domain name, and (3) the domain name registered must be used in bad faith. Using this avenue, a trademark owner will most likely prevail if the domain holder registered the domain after the trademark owner started to use the mark and cannot demonstrate use or preparations to use the disputed domain name in connection with a bona fide offering of goods or services.
holders may not only survive court or administrative proceedings, but enjoin use of a subsequently registered trademark. Their legitimate use of the disputed name may in fact attract sufficient traffic to the website to acquire secondary meaning in the domain name. Strategies that contribute to a favorable resolution of disputes for the domain name holder include: fully developing the website, offering goods or services for sale, offering information related to such goods or services, and advertising on the website and other media to establish customer recognition.
What Should Your Client Know Prior to adopting a trademark, one should start with a search for trademark conflicts to avoid infringing upon others’ marks. Too many times, businesses invest a significant amount of money promoting a mark to later find out that the same or a similar name has been used by a competitor and they can-
Rights of Domain Name Holders
There are situations when the domain name holder may show that it has common law rights to the name at issue prior to the trademark registration or common law use. The courts that have encountered this issue had to examine the question of priority mostly from the stand point of a defense strategy. UDRP cases have followed a similar pattern. Panelists consider the holder’s priority in determining whether the domain should be awarded to the trademark owner. Yet, there are domain name holders that have developed websites that attract customers or that offer information related to holders’ products. Such
not proceed to selling their existing inventory without the threat of a cease and desist. Additionally, a good practice would require a search for domain names that include the same or a similar word. When applying for federal trademark registration, consider securing rights for the brand name or logo associated with the business, as well as for the important product brands. After building a trademark portfolio, one must continue to use all the registered trademarks or they will be lost. A business might want to register several domains to secure its name in several variations. Such variations might also include names of important new products. Finally, a business should not neglect conducting an annual audit of its trademark usage to consider pro HN tecting new marks. Katarzyna Brozynski is a partner at Gordon & Rees LLP and may be reached at kbrozynski@gordonrees.com. Sorana G. Ban, an associate, may be reached at sban@gordonrees.com.
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16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
January 2015
The Business of Law
The Trailblazers: Pioneer Women Lawyers Look Back tem. We have many excellent lawyers in our area. I love to see lawyers practice their craft.”
by Mary Louise C. Hopson
The little toy Joan of Arc soldier leans slightly to the right as it stands upon my desk. Given to me as a child by my grandparents, this tiny souvenir, like its real predecessor, has seen a lot over the years. It even journeyed with me to Rouen, France, the site where the real Joan was burned at the stake in 1431. Her sword is broken off, and the flag she used to carry in her left hand is nowhere to be found, but she still carries an expression of determination and an attitude of perseverance. Looking at the tiny statue made me think of the women lawyers who paved the way in the last quarter or so of the previous century for others to become attorneys in firms, corporations, government and elsewhere. These women surely must have felt a bit like Joan as they pursued their careers. Darwin Payne observed in his history of the DBA, “As Old As Dallas Itself: A History of the Lawyers of Dallas, the Dallas Bar Associations, and the City They Helped Build,” that in 1969, right before their numbers started increasing somewhat in the 1970s, only 150 women were practicing law in Dallas. Less than seven percent of U. S. law students were women then; just 10 years later, that number had increased to just under one third of all students. Today women comprise about half the incoming classes. Women make up about 35 percent of the DBA membership, with the American Bar Association reporting similar statistics. Realizing that many of the women admitted during the “mini-surge” of the mid-1970s now have almost four decades of practice under their belts, I contacted a few of these women pioneers. What were they thinking as they looked back on their decades of practice? What wisdom could they share with women just starting out?
Fortitude
The Honorable Barbara M. G. Lynn became judge of the United States District Court for the Northern District of Texas in 2000 after being nominated by President Bill Clinton. She was accustomed to being a trailblazer by the time she started practicing in 1976 at Carrington, Coleman, Sloman & Blumenthal. She was the first woman president of the Dallas Association of Young Lawyers.
Be Proactive
The early years of law practice “took a lot of fortitude,” said Judge Lynn. “To ‘keep on keeping on’ was difficult. We weren’t received warmly by everybody.” A “special resiliency and a commitment to the cause to stick with it” were required, she said, adding that many women who persevered became administrative judges, members of the state courts, tax and business practitioners, in-house counsel, and managing partners at large law firms. During the 1970s, Judge Lynn was involved with the Association of Women Law Students, the plaintiff in the Title VII lawsuit that opened up opportunities for women to go to work for law firms after they had encountered difficulty landing positions after graduation. She said the lawsuit served a very useful purpose by bringing about changes in law firm hiring practices. What was her path to becoming a judge? “I had put my name in the hat for a previous judicial position, but wasn’t really looking to make such a move at the time I was contacted about the position I have now,” she said. “I had built a good law practice, I loved my firm, and I held leadership positions there. I took two full weeks to decide to move forward with it.” When asked what she likes about her job, Judge Lynn replied that it’s “very challenging. I love to preside over trials and see juries make decisions. I am confident in the jury sys-
New Buffet Prices Effective January 1 Over the past eight years, the buffet prices have not increased, but Culinaire’s expenses and costs of operation have increased significantly. In order to maintain the quality and level of service our members have come to expect from the Belo facility, the time has come to make a slight adjustment to the buffet prices. Beginning January 1, 2015, the full buffet (including a dessert) will increase to $14.95 and the soup and salad (including a dessert) will increase to $10.75. These prices are inclusive of tax and 15% service charge. By comparison, the Tower Club buffet is $16.95, plus $5.95 for dessert, plus tax and plus 21% service charge. Thank you for understanding and we hope that you will continue to enjoy our lunch buffet as a benefit of membership in the Dallas Bar Association.
Nina Cortell began practicing law in 1976 as the first woman lawyer at Haynes and Boone, where she became a partner in 1982 and continues at the firm as an appellate and litigation partner. She also is a founding member and current president of the Executive Committee of the Center for Women in Law at the University of Texas School of Law, a resource to enhance the success of women lawyers during every phase of their careers. A frequent speaker and writer on professionalism and practice management, Ms. Cortell remembers the early days when there were few women. She offered some advice for young women lawyers. At the top of the list? Be proactive, and be the best lawyer one can be. “Take—and actively seek—the hard assignments,” she said. “Have a cando attitude, and seek advice from and develop relationships with those who can help you advance in your career. As you advance, periodically evaluate where you are and where you want to be, determine the steps you should take to bridge those two points, and follow through. If things are not going as you want, change one thing, and then, if necessary, change something else. Try to figure out a way to make it work for you, because a legal career is very rewarding and it gets only better as you advance through it.”
Step Up
Janice V. Sharry began practicing law in 1977 at Haynes and Boone, where she became a driving force in the area of corporate law. She has served as head of the Corporate Finance Group at the firm, and also serves on the firm’s Board of Directors. “I started at Haynes and Boone when the firm was small, and had the opportunity to work with (firm cofounder) Dick Haynes, serving as second chair to him for many years,” she said. “When Dick became ill, I had to step up and take over for the clients. That made for a really good resume!” Although her practice is still going full throttle, Ms. Sharry sees this phase of practice as an opportunity for women to reconsider and possibly redefine their roles and their lives. She knows several women who have reassessed their careers at this point in time, a reassessment that does not necessarily include “retirement.”
“Women love law practice,” she said, “but some also may want to find time for other things, such as an interest in art, more time for grandchildren, or taking care of a sick family member. Many still want to find ways to remain connected with legal practice and the world of business, perhaps by writing for legal publications or serving on boards. There is no better time to do that than now. “Women who have been practicing that long should be proud of where they are. We may need to think about how to do things differently. Changes in the legal community, including changes in technology, enable us to do this. It’s a very important time for us and we need to think it through. None of us will just sit back and relax.” We know and admire these women trailblazers. They have worked hard to get to where they are today. They have felt the flames. They have a place at the table. They are making a difference. And we are fortunate to have HN them in our midst. Mary Louise Hopson was one of the first law firm marketing professionals in the country and has served on the DBA’s Publications Committee for more than 17 years, including as Co-Chair.
More Pearls of Wisdom from Nina Cortell (abridged from an article in Texas Bar Journal, April 2005)
• There is no substitute for a good work ethic. • Good preparation is key, but spend your hours wisely. • Learn everything you can. Learn the business of law as well as the practice of law. • It’s ok not to know the answer to a question right away. Check details if necessary and get back to the client or supervisor. • Pay attention to the details—citations, accuracy, correct spelling. • Mistakes are usually correctable, so own up to them early when something can still be done to correct them. • Your reputation is something to think about the first day of your career. It should be your greatest asset. How do you want people to regard you 50 years from now? • Seek balance in your life. Enjoy the opportunities that your work and the people involved in it create for you. Have fun!
DVAP’s Finest
Aubrey Connatser
Aubrey Connatser is the Managing Member of Connatser Family Law. She has taken numerous family law cases, mentored dozens of lawyers who agreed to take family law cases, and presented various trainings to firms interested in taking simple family law cases through DVAP. She has interviewed applicants at the South Clinic and East Clinic on many occasions. She has also donated to the Equal Access to Justice Campaign for over ten years. Thank you for all you do, Aubrey!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Janua ry 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 17
Intellectual Property Law
Lululemon: An Apple in Fashion by Brian Breedlove
While comparing apples to oranges may still be impossible, comparing Apple to Lululemon proves fruitful in its results. Beyond the obvious similarities—specializing in high-end consumer goods, cultivating cult-like followings of brand enthusiasts, and having chief executive officers who make headline news—Apple and Lululemon share commonality in using aggressive tactics to protect intellectual property rights. Specifically, both companies strategically have used design patents against competitors in innovative ways and inspired others in their respective fields to emulate the practice. Over the past several years, design patents have become more publicized due to Apple’s still continuing legal battle with Samsung over the alleged copying of aesthetic qualities of smartphones and tablets. After a jury found Samsung infringed a number of Apple’s design patents covering the iPhone and awarded Apple $1 billion in damages, such patents have become more widely used in the technology industry. Other sectors, including the fashion industry, have not yet followed this trend. Because design patents may only cover ornamental aspects of an item shown to be new, non-utilitarian and non-obvious, their use to protect designs related to fundamental garments has historically been limited in the fashion industry. The expense and time required to obtain a design patent have acted as additional deterrents for an industry based on seasons and ever-changing style. Instead, fashion houses and designers have relied on trademark and copyright law to protect aspects of their products, namely, logos, brand names and distinctive color. Lululemon, however, may be posi-
tioned to revolutionize the fashion industry’s perception and use of design patents in a manner similar to how Apple influenced the technology sector. Over the last several years, the United States Patent and Trademark Office has granted just over 30 design patents to Lululemon. Most of these design patents relate to waistbands and bra straps, but Lululemon also holds design patents for duffel bags, exercise mats, and hoods featuring holes intended to accommodate ponytails. Over this same time period, Lululemon has been at the forefront of a booming active wear industry. As the active wear market has quickly increased in sales, Lululemon has also led the way in asserting design patent infringement claims related to clothing against a growing number of competitors. In 2012, Lululemon sued Calvin Klein Inc. and G-III Apparel Group Ltd. for the alleged infringement of at least three design patents covering the waistband, straightleg design and back waistband pocket of Lululemon’s signature Astro Pant. Lululemon’s complaint claimed the Calvin Klein pants, which retailed for $40 less than the Lululemon pants allegedly copied, unlawfully caused the “disgorgement of profits received” by Lululemon and irreparably damaged the brand. The companies quickly reached a confidential settlement that made Lululemon successful in literally suing the pants off of Calvin Klein’s retail shelves. Over a year later, Lululemon sent a cease-and-desist letter to Hanes demanding the company stop manufacturing certain tank tops featuring a loose outer garment with waistband over a built-in bra under its Champion brand exclusively sold at Target. The letter relied on consumer reviews found on Target’s website and independent posts from fashion blog-
gers to assert consumers, a group typically most relevant to trademark claims, had determined Hanes copied Lululemon’s designs for which the latter held patents. Hanes responded by seeking a declaratory judgment invalidating Lululemon’s design patents for being “obvious” with “vague and indefinite” drawings and declaring no infringement of any design patent occurred by Hanes. This dispute recently reached an out of court settlement and all terms have remained confidential. Despite the lack of substantial litigation or monetary damages received outside of any payments potentially existing under confidential settlement agreements, Lululemon’s efforts have shown how design patents may effectively be used to add value to a clothing brand. Other fashion houses and designers, similarly intending to utilize
a unique design aspect regularly on garments, appear to have noticed Lululemon’s success. For example, Nike, Inc. acquired more design patents related to garments last year than the totality of those ever acquired prior to 2014. With active wear setting the pace for growth in the overall apparel market and an increasing number of offerings becoming available from a growing number of competitors, design patent litigation in the fashion industry may soon become more prominent. Beyoncé recently announced her collaboration with Topshop for an active wear line set to launch later this year; if she likes it, she better put a design HN patent on it. Brian Breedlove is an associate at Alston & Bird LLP and can be reached at brian.breedlove@alston.com.
BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL Help Organize Events & Awards
Develop and oversee the mock trial events/awards for students.
Become an advocate for mock trial
Help recruit compe��on volunteers and conduct trainings to educa�on schools, students and teacher coaches on mock trial.
Tournament tabulators
Work behind the scenes at the compe��on to help tabulate scores for the high school mock trial compe��on.
Mock Trial Compe��on Dates: January 24‐31, February 7 and March 5‐7, 2015 See website for details: www.dallasbar.org/mocktrial To volunteer, or for more informa�on: ktaylor@dallasbar.org | (214) 220‐7484.
18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
January 2015
In The News
FROM THE DAIS
Colin Cahoon of Carstens & Cahoon, LLP spoke at the 52nd Annual Conference on Intellectual Property Law at The Center for American and International Law in Plano. Brent Kugler with Scheef & Stone, L.L.P. gave a presentation at Direct Selling Association’s 2014 Global Regulatory Conference. Tom Kulik with the firm gave a CLE presentation for the Christian Legal Society. Jaspal Hare and Jack Sheedy gave presentations at the Texas Engineering Law Seminar in Arlington. Sally Helppie with Vincent Lopez Serafino Jenevein, P.C. presented at the national convention for the Chris-
tian Media Association. Mike Farris, of the firm, served on the faculty of the La Jolla Writer’s Conference, in La Jolla, CA. Sally Helppie and Mike Farris were speakers at the 24th Annual Entertainment Law Institute in Dallas.
KUDOS
Beverly Godbey with Gardere Wynne Sewell LLP has been named to the Board of Trustees of The Center for American and International Law. William G. Whitehill, with Gardere Wynne Sewell LLP, has been elected to serve as Justice on the Texas Fifth District Court of Appeals effective January 1, 2015. Brandi McKay with Scheef & Stone,
Thank You Donors!
L.L.P. was accepted into the Frisco Chamber of Commerce’s Leadership Frisco Class XVII. Roger Fuller of Fuller & Eason was elected chairman of the Dallas Community Police Awards Committee. Lewis R. Sifford of Sifford, Anderson & Co. P.C. was inducted as a Fellow of the International Academy of Trial Lawyers in Messina, Italy.
MOVE
Michael Haynes rejoined Gardere Wynne Sewell LLP as a partner. Brian P. Lauten joined Deans & Lyons, LLP as a partner. Rebecca
Neighbors
and
John
J.
Reenan joined Burdette & Rice, PLLC. Frederick S. Adams, Jr. joined KoonsFuller, PC Family Law as a Shareholder. Justin Scroggs joined Cutler-Smith, PC as an associate attorney. Jose Gonzalez, Marcos Ronquillo and Forrest Smith joined Friedman & Feiger, L.L.P. Akbar Kabani and Arshil Kabani moved their firm Kabani & Kabani, PLLC to One Galleria Tower, 13355 Noel Road, Suite 1100, Dallas, Texas 75240. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org
The DBA’s Newest Member
(Left to right) Jane Hurst, of Irwin R. Rose & Co., Inc.; Campaign Co-Chair Laura Benitez Geisler, of The Geisler Law Firm; Michael Hurst, of Gruber, Hurst Johansen Hail Shank; Stacey Dore, of Energy Future Holdings Corp.; and A. Shonn Brown, also of Gruber Hurst.
DBA members are getting younger and younger. Meet Brody Weber (center)—the DBA’s newest addition. Dad and mom are DBA President Brad Weber and wife Katie Bandy Weber.
Professionalism Tip
Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct. Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Thank you to all of our Campaign for Equal Access to Justice sponsors who attended the Bachendorf’s Reception.
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Last minute mediations Weekend and evening hours Convenient free parking Office location in Uptown If case is not resolved, I will re-mediate at no additional cost to the parties (some restrictions apply)
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Janua ry 2 0 1 5
Dal l as Bar A ssoci ati on l Headnotes 19
Classifieds
January
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.”
FOR SALE
Share a Texas Rangers Suite at the Ballpark behind home plate: Select 10 (or multiples of 10) games during the upcoming Rangers season in a suite behind home plate. Each game includes 16 tickets, 5 parking passes (three reserved passes in Lot E and two general admission), access to the Capital One Club before and after the game, and ability to purchase 4 additional seats in the suite per game. Also available: 4 front-row seats in the First Base Commissioners Box. Tickets are selected by draft; each partner picks his/her own games (all games except opening day included). Call (214) 560-4212 or email rwamre@advocatemag.com for information.
OFFICE SPACE
Pearlstone Suites in the West End of downtown Dallas are unique new law offices combined with professional law firm marketing services to help attorneys launch or grow a solo practice or small firm. Suites include these amenities at no additional cost: Direct dial phone with personalized voicemail and call forwarding, high speed Internet access, IT support, law office reception, on-site building security, conference rooms, kitchen and coffee service, fitness center, building directory listing, all utilities and CAM charges. Marketing services available include websites, branding, brochures, strategy, coaching and more. Pre-leasing discounts available until June 30. Visit www.pearlstonesuites.com or call (214) 446-3943. Large office and/or secretarial office available at 4054 McKinney Avenue. Shared
conference and break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00 for the unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600. Walnut Glen Tower (Walnut Hill/Central) Tasteful, bright, spacious offices in Class A building with views of downtown over lake with fountain. 16-story glass atrium with glass elevators and waterfall. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Central Expressway | Park Cities – Varying sized offices and cubicles are available for rent. Office with several long-established law practices. Perfect for Solo practitioners and 2-to-3 partner groups. Your space comes with turnkey services, amenities and updated technology at affordable pricing. For pictures, floor plan and greater detail, please visit us at www.MeadowsLawCenter.com or call (214) 368-7880 Ext 4413. Dallas Arts District/Uptown area: Easy access on Woodall Rodgers at Klyde Warren Park. 1821 sq ft for $25/sq ft. Multioffice space includes kitchen and conference room. Call (214) 220-1210 ext. 102 or dhaley@milbyfirm.com. 4340 North Central Exp. 500 - 2000 sq. ft. that can be modified to meet requirements. Contact Jack Manning (214) 823-6600 or Jack@Lawyeranddefender.com. Located on the east Frontage road between Fitzhugh and Henderson, excellent location, friendly environment, a good place to practice. North Dallas. Office with window view available for rent with law firm located in Dallas Class A building near 635 & Coit. Amenities include use of 3 conference rooms, parking garage, photocopy/scanner/ postage/facsimile and related amenities. Contact Aaron at (214) 347-4259 or email info@hn-lawfirm.com.
POSITION AVAILABLE
Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law
Spanish for Lawyers: Sign Up Now! 10-Week Course Spring 2015 | Cost: $180 January 6-March 10, 2015 For more information, contact Teddi Rivas at trivas@dallasbar.org or (214) 220-7447.
Does Advertising Work? It Just Did! Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County.
Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com. Palmer & Manuel seeks to add one or two attorneys with established practices in any of the following areas: business litigation, business transactions, estate planning or probate, or family law. Our formula based compensation system allows attorneys to keep a high percentage of their fees. See our website at pamlaw.com. Contact Steve Palmer at spalmer@pamlaw.com. Finance Attorney Wanted: McGuire, Craddock & Strother, PC, seeks a bright, hard-working associate with 4-8 years commercial lending/finance experience (with an emphasis on commercial real estate lending), excellent writing skills, and excellent people skills. Prefer top 25% of class from major law school and a sense of humor. Please submit resume and writing sample to lscott@mcslaw.com. Texas Licensed Oil and Gas Associate. Full-Time. Compensation/Benefits: Negotiable. Job Description: Independent contractor with the potential for an Associate position. Duties will include: rendering original drilling opinions, supplemental opinions, acquisition opinions, division order title opinions, leasehold title opinions and banking title opinions. The ideal candidate must be licensed in Texas. Would prefer experience advising clients on oil, gas, and mineral title issues, pooling and unitization, community leases, and matters related to undivided mineral ownership and leasehold estates. He or she should be skilled in the preparation of oil and gas leases, amendments, assignments, ratifications, mineral and royalty deeds, and operating agreements. Experienced oil and gas candidates should possess 3+ years’ experience with oil and gas title issues throughout all regions of the State Texas. Please forward your resume to Sharman Casper at Sharmen.Casper@Beckmenlawfirm.com.
ronment. Send cover letter and resume in confidence to oaklawnfirm@aol.com. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
SERVICES
Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Energy Acquisition(s): I buy any size royalty(ies), mineral(s), working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1 (800) 760-9890 or (214) 720-9890 for a friendly and quick analysis and response. Transfer Pricing Expert. William Seeger, PhD, is an economist with 23 years of experience, IRS and Big Four, providing Economic consulting services, Transfer Pricing Documentation, International Tax Planning advice, and Dispute Resolution guidance and strategy. His Dispute Resolution experience includes IRS field audits, Appeals, Competent Authority, and Advanced Pricing Agreements. Former Partner, PwC and KPMG, and Dallas District Industry Economist. Contact Dr. Seeger at Quantecon Consulting, (972) 422-9170 or visit www.Quanteconconsulting.com. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Business litigation firm seeks experienced trial attorney with first chair trial, deposition, and appellate experience. Some existing hourly clientele a plus. Compensation negotiable. Firm offers first rate office facility, a tenured, experienced support staff, and good work envi-
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
Need a Referral? Take out an Area of Practice and/or Foreign Language Proficiency listing in the 2015 DBA Member Directory to get great exposure for your practice. For just $25 per listing you will be included in both the printed and online DBA Member directory. Listing cost:
$25.00
For more information and an order form contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
20 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2015
We congratulate BRAD WEBER on his appointment as the 106th president of the
DALLAS BAR ASSOCIATION.
Not only is Brad a very successful lawyer, but he is committed to giving back to his profession and his community — a quality we all respect, admire and aim to duplicate. We know he’ll continue to do a great job and be a valued leader for the Dallas Bar Association.
Practical Wisdom, Trusted Advice. www.lockelord.com Atlanta, Austin, Chicago, Dallas, Hong Kong, Houston, London, Los Angeles, New Orleans, New York, Sacramento, San Francisco, Washington DC